Kavanaugh voted to overturn the Birthright ruling, but also said it was constitutional.published 16:48 BST 30 June
Lisa Lambert
BBC News
Justice Brett Kavanaugh joined five others in voting against Trump’s order, but his reasoning was entirely his own.
“In my opinion, the order does not violate the Fourteenth Amendment,” he wrote in his opinion explaining his dissent. “The constitutional issue is not as simple as we would like.”
Essentially, Kavanaugh’s problem with the executive order stems from immigration legislation passed in the early 20th century—the Nationality Act of 1940 and the Immigration and Nationality Act of 1952. Lawmakers used language from the 14th Amendment, as well as parts of the Wong Kirk Ark Court decision in 1898, which created four exceptions to the amendment (for example, a person born of a foreign sovereign is not a citizen) in their legislation.
For Kavanaugh, this means that creating additional exceptions for children of illegal immigrants or people temporarily in the U.S. should be an act of Congress, not a presidential order.
Kavanaugh then lays out possible arguments for why Congress must pass a law on these two exceptions.
The Constitution applies “to contemporary situations that were unknown or unforeseen by the framers of the Constitution,” and the post-Civil War framers of the 14th Amendment could not have foreseen current immigration problems, he argues.
They could not expect—or even intend—that the United States would grant citizenship to children whose parents break the law by coming to the country, but deny citizenship to people “who comply with U.S. immigration laws and have children in their home countries while seeking to immigrate legally to the United States.”
It would also be difficult to imagine people coming to the U.S. temporarily to have children and thereby make them citizens, given how different travel and immigration laws were when the amendment was ratified in 1868, he says.
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